Defendants contend that the Complaint should be dismissed because the Court lacks subject matter jurisdiction to entertain this action because Lutheran General lacks standing herein. In this regard, Defendants argue that the assignment of rights executed by Ms. McGivern in favor of Lutheran General on November 10, 1993 was not made by a "participant" or "beneficiary" within the meaning of 29 U.S.C. § 1132(a)(1)(B). They argue further that the Plan's language does not provide Lutheran General with a "colorable claim" in its own right, citing Sallee v. Rexnord, 985 F.2d 927 (7th Cir. 1993); Kennedy v. Connecticut General Life Ins. Co., 924 F.2d 698 (7th Cir. 1991).

Lutheran General notes that the Plan includes dependents under its definition of a "participant" and argues that, therefore, Brandon was a participant within the meaning of 29 U.S.C. § 1132(a)(1)(B). It also argues that Lutheran General is a beneficiary, since it has a "colorable claim" to benefits.

The Court, having carefully reviewed the parties' respective arguments, the cases relied upon by them, the Statute and the Plan's language in this regard, is unable to conclude that the case should be dismissed for lack of jurisdiction. Therefore, Defendants' Motions to Dismiss are denied.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In a motion for summary judgment, the initial burden is on the moving party to show an absence of genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). When the movant meets this burden, the opposing party, with the burden of proof, ". . . may not simply rest on its pleadings, but must affirmatively demonstrate with specific factual allegations that a genuine issue of material fact exists and requires trial." Morgan v. Harris Trust and Sav. Bank of Chicago, 867 F.2d 1023, 1026 (7th Cir. 1989) (citing Beard v. Whitley, 840 F.2d 405, 409-10 (7th Cir. 1988)). There are no genuine issues for trial if, when looking at the record, a rational trier of fact could not find for the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

The portions of the Plan that are relevant herein are Sections 4.2 and 4.3 of Article IV and Section 16.2(d) of Article XVI. Section 4.2 provides as follows:

4.2 Commencement of Coverage - Dependents - If an Employee is eligible for, and enrolled in, any Health Care Benefit coverage, he may elect to extend such coverage to his Dependent(s). Dependent coverage shall commence on the later of:

(a) the date the Employee's coverage commences, or

(b) the date the Employee enrolls his Dependent(s) in accordance with Section 4.3 of this Plan, or

(c) the date the Employee acquires the Dependent(s).

Notwithstanding the above, if a Dependent is hospitalized on the date coverage is to commence, coverage shall not commence until that Dependent has been released from the Hospital for at least 24 hours.

To enroll for coverage, the Employee must complete an enrollment form approved by the Plan Administrator, and submit that form to the Plan Administrator. An enrollment shall not be completed until all necessary enrollment information has been received by the Plan Administrator.

Wendy's Mot. to Dismiss, Exh. E at 14-15.

Article XVI, Section 16.2(d) provides as follows:

(d) The Plan Administrators shall have the sole responsibility for the administration of the Plan; and, except as herein expressly provided, the Plan Administrators shall have the exclusive right to interpret the provisions of the Plan and to determine any questions arising hereunder or in connection with the administration of the Plan, including the remedying of any omissions, inconsistency or ambiguity, and its decision or action in respect thereof shall be conclusive and binding upon any and all Participants or former Participants.

Wendy's Mot. to Dismiss, Exh. E at 71-72.

In view of the provisions of Section 16.2(d), which gives the Administrators discretionary authority to interpret the provisions of the plan, the Court's standard of review of the denial of benefits herein is under an arbitrary and capricious or abuse-of-discretion standard. Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 103 L. Ed. 2d 80, 109 S. Ct. 948 (1989).

Under Section 4.3, coverage for Brandon could not have commenced until November 16, 1993, the date on which the Plan Administrator received the enrollment form completed by Ms. McGivern on November 10, 1993. Section 4.2 provides, however, that since Brandon was hospitalized on the date coverage was to commence, the coverage did not commence until 24 hours after he was released from the hospital, December 24, 1993. Therefore, under the plain language of the Plan, none of the expenses incurred by Brandon between November 10, 1993 and December 23, 1993 were covered.

In a 20-page document titled, "Your Employee Benefit Program", which all participants receive, the Plan's coverage of dependents is described, in part, as follows:

Since the participation in the Optional Life Insurance, and the Medical and Dental Plan is voluntary, coverage for these benefits cannot begin until you have enrolled and authorized the necessary payroll deductions. Your coverage for these benefits will begin on the later of:

. the date you are eligible to participate in the group insurance program, provided you submitted the necessary enrollment form to the Human Resources Department at Wendy's Corporate Headquarters on or before that date, or;

. the date your enrollment form is received by the Human Resources Department at Wendy's Corporate Headquarters.

* * *

If a dependent is hospitalized on the date coverage for that dependent would otherwise begin coverage for that dependent will not begin until he/she has been released from the hospital for at least one full day.

We urge you to enroll for dependent coverage well in advance of the date you will acquire dependents (e.g., through marriage, adoption or the birth of a child, etc.), to be sure they are covered as soon as they become your dependents.

In Black, the plaintiff ("Mr. Black") was a participant in his employer's "Severance Pay Allowance Plan," under which employees who were terminated would receive payments based on the length of their service with the company. The company subsequently filed a Chapter 11 Bankruptcy Petition. Several months later, Mr. Black was terminated. His termination notice informed him that he could either file a claim in bankruptcy court for his severance benefits of $ 18,469 or the company would immediately give him two months' salary continuation, without the need to file a claim. Mr. Black opted to file his claim in the bankruptcy court rather than take the offer of immediate cash. The employer then objected to all bankruptcy claims for severance pay for employees who were terminated after a certain date, which included Mr. Black. The bankruptcy court approved payment of 65% of each severance pay claim that was not objected to by the employer, and dismissed Mr. Black's claim.

Mr. Black filed suit in district court alleging, inter alia, that the employer had breached its fiduciary duty by objecting to his claim in the bankruptcy court and that it was estopped to deny the validity of his severance pay claim. The district court held that the Severance Pay Allowance Plan was a Welfare Benefit Plan, which the employer could unilaterally eliminate without violating ERISA. The district court rejected Mr. Black's estoppel argument, holding that it could not be raised in ERISA cases. Black, 900 F.2d at 113.

The Seventh Circuit noted that the rationale for the reluctance of courts to allow estoppel in ERISA cases is that most of such suits involve multi-employer plans, with multiple fiduciaries with control over a common fund, and that, to allow one employer to bind the plan to pay benefits outside the strict terms of the plan would be to make all employees pay for one employer's misrepresentations, which could damage the soundness of the plan, thereby hurting all employees. With this rationale in mind, the Seventh Circuit noted that, in cases involving single-employer, unfunded plans, there is no danger of the actions of one employer damaging other employers and employees and that, therefore, there is no reason not to apply the general rule that misrepresentations can give rise to an estoppel. It held, therefore, that "estoppel principles are applicable to claims for benefits under unfunded single-employer welfare benefit plans under ERISA." Black, 900 F.2d 112 at 115 (emphasis added).

It is undisputed that Wendy's Health Plan is a single-employer, self-funded health insurance plan. Therefore, even if Lutheran General could show that some individual at MetLife had verified that Brandon was covered under the plan, and that this was the reason it provided services to him, the doctrine of estoppel would not be available to force payment for those clearly non-covered expenses.

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